How to stack Swedish Fish: Food companies simplify while fighting class action lawyers

By John O'Brien | Dec 20, 2017

NEW YORK (Legal Newsline) – Though it might look like the world’s worst attempt at a bribe, Herr’s had a reason to send a couple of empty potato chip bags to a federal judge presiding over a class action lawsuit against it.

The company has been sued by a prolific New York City lawyer, described by one of his opponents as the orchestrator of “shakedown” lawsuits, over how full its bags of chips are.

And the company says attorney C.K. Lee’s complaint measured its bags incorrectly.

“Plaintiffs’ failure to accurately measure bag heights is deeply troubling on a number of levels,” attorneys for the company wrote earlier this year when they asked U.S. District Judge Frederic Block to dismiss the case.

“If the plaintiffs can’t accurately measure the height of bags based on a horizontal line of measurement, how can it be assumed that their self-reporting of the alleged ‘heights’ of chips of uneven disposition and shape in those bags are reliable and plausible?”

That lawsuit, like many of Lee’s, alleges Herr’s packaging contains too much air – known as “slack-fill.” Plaintiffs in these cases claim they were misled by the discrepancy between the size of the package and the amount of product within.

Ordinarily, defendants quickly settle by paying off the lead plaintiff and his or her attorney before a class is ever certified. Even a demand letter, issued by plaintiffs lawyers before a lawsuit, can bring in tens of thousands of dollars.

Lee is hardly the only attorney making money on these cases, which have been on the rise in recent years. The law firm Perkins Coie concluded that 30 were filed in 2015 and 37 last year.

Among the products mentioned in these cases are Jolly Ranchers, Hot Tamales, Mike and Ikes, Whoppers, Ice Breakers, Reese’s Pieces and pepper.

Unlike the term “natural,” slack-fill has an official definition from the FDA, but defendants argue it can be necessary and useful. Plus, labels show the products’ weight and how many servings are inside.

Still, plaintiffs lawyers have pushed their theories on many companies – a few of them, like Herr’s, are even putting up a fight.

Stacking fish

Traditional defenses to slack-fill cases include arguments over whether the plaintiff has standing, whether a reasonable consumer would be misled by the packaging and whether the slack fill serves a function.

Sometimes, though, companies are forced to simplify. The maker of Swedish Fish recently told a judge that its packaging isn’t misleading, but the pictures provided by the plaintiff of it are.

The picture below that was provided in the complaint aimed to show how much empty space comes in a package of Swedish Fish.

“But the amount of slack-fill is exaggerated in Plaintiff’s picture because the candies are apparently stacked on top of each other such that they exceed the width of the box,” attorneys for Mondelez International wrote earlier this year in a motion to dismiss.

“If the candies are laid flat (as they must to fit into the box), the amount of slack-fill is minimal and tailored to its functional purposes.”

Judge Margo Brodie, of the Eastern District of New York, has not issued a decision on Mondelez’s motion. In fact, very little has occurred in the case since June.

Another picture Mondelez provided highlighted the nutrition chart, showing seven pieces per serving and two servings per box. How can a consumer be misled by packaging that discloses approximately how many pieces are inside?

“Because the box allows (and, in fact, inevitably requires) the consumer to hear and feel any empty space contained within, the product is not deceptive as a matter of law. Plaintiff cannot rely on willful blindness to pursue his claims,” the company wrote.

“In sum, Plaintiff focuses exclusively on the size of the Swedish Fish box while ignoring the express disclosures of weight and serving size, the rustling of the contents inside, and the fact that a consumer can easily press the thin cardboard box to feel the contents.”

Lee says Mondelez is “dancing on a needlepoint to support its position.”

“Plaintiff, as a reasonable consumer, expected far more candy in her product because similar candy has more candy per box,” he wrote.

“Plaintiff knows that comparable products have less slack-fill than Defendant’s, and reasonably infers that, at minimum, the slack-fill in the product that is in excess of comparable candies’ is non-functional.”

Mondelez has already defeated at least one slack-fill case, earning a victory on Oct. 26 in Lee’s lawsuit over Sour Patch Kids candy. Lee alleged 44 percent of the packaging is empty space with no legitimate purpose, but Judge Colleen McMahon dismissed all claims.

Lee’s plaintiff could not establish a claim for injury, even after arguing Sour Patch Kids are more expensive per ounce than other candies on the market.

“Comparing the candy to Hot Tamales and Junior Mints is the saccharine equivalent of comparing apples with oranges,” she wrote.

“Such a comparison tells the court nothing about the value of the candy, or whether the cost of the candy was inflated by Mondelez’s allegedly misleading packaging. Rather, Plaintiffs have impermissibly set up the deception as both act and injury, a theory specifically disallowed by our courts.”

Trial dates

A company that sells dried fruit is actually suing class action lawyers before they could file their lawsuit after receiving a letter demanding $28,000.

Fruit Bliss is also wondering how packaging that is flat and allows customers to feel how much of it is filled with dates could be the subject of a slack-fill case that Scott Ferrell of Pacific Trial Attorneys threatened and eventually filed.

The company says it is one of many small- to medium-sized businesses in New York being threatened by groundless demand letters from plaintiffs attorneys who are threatening class actions if their settlement demands aren’t met.

“The latest flavor of the month is the ‘slack-fill’ threat where businesses are peppered with dubious assertions devoid of fact that their product contains impermissible slack-fill,” attorneys for the company wrote in their August complaint.

“Fruit Bliss, and likely the rest of the food industry, has had enough of this new troll mill which is nothing more than a scheme to rake in cash for attorneys and their so-called ‘lead’ plaintiffs.”

The product in question comes in 6x9-inch re-sealable, zip-lock style bags that are flat until the customer opens them for the first time. Inside are five ounces of dried dates. 

“By definition, there is no impermissible slack-fill since the package is not ‘puffy’ or filled with air as to deceive a consumer,” the company says.

It remains to be seen whether Judge Dora Lizette Irizarry will issue a declaratory judgment that says Fruit Bliss can’t be sued over slack-fill. The company has recently discovered Anthony Buso as the plaintiff threatening it.

Buso’s class action, which he filed a month after Fruit Bliss filed its lawsuit, is his fourth lawsuit this year. Fruit Bliss says that complaint is a “copy-and-paste job” of the others.

“Common sense dictates that Plaintiff has likely sent more spurious demand letters with meritless slack-fill claims, some he has no doubt settled to his advantage,” the company says.

Attorneys for Buso say the company is bullying him and that the New York court lacks jurisdiction. They have urged that court to dismiss Fruit Bliss’ lawsuit, while Fruit Bliss has asked a California judge to do the same with Buso’s.

It’s hard to tell if the whole thing is headed for a settlement. After Buso’s lawyers sent their demand letter, Fruit Bliss’ counter-offer was that Buso pay it $8,000.

Wrapped up in lawsuits

Some judges have refused to dismiss slack-fill lawsuits like the one that continues against the maker of Mike and Ike and Hot Tamales candies. A class action settlement with StarKist shows how lucrative these cases can be.

StarKist agreed to pay $12 million, and plaintiffs attorneys are taking more than $3.5 million. The lead plaintiff even got $5,000.

So, plaintiffs attorneys who are looking for another big score will continue to seek out targets. As sandwich shop Pret A Manger, sued over the size of its wraps, and Tootsie Roll Industries, facing legal action over the amount of Junior Mints in its boxes, have found out, any packaging could lead to litigation.

To defend itself, Pret is using the Sour Patch Kids decision to bolster its technical arguments. But as it whittles any slack-fill issues down to a more basic level, the company is forced to point fingers at its own workers.

The simple explanation? Maybe, every once in a while, someone messes up.

“For a wrap to have slack-fill as Plaintiffs have alleged, it can only be the result of human error in the preparation, rolling, cutting and/or packaging of the individual wrap – an error made contrary to Pret’s express directions by the specific individual who prepared that wrap by hand…” the company wrote in a recent motion to dismiss.

From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.

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Organizations in this Story

Lee Litigation Group, PLLC Newport Trial Group Perkins Coie Pret a Manger

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